If you have the time, you might enjoy this. A review of a book arguing for an individual versus collective right to bear arms.
- Click her for it.
"Every thing of a controvertible nature," James Madison noted regarding his
proposed Bill of Rights, "was studiously avoided."'
We may wonder what he would
think of the 217 years of controversy that followed.
For most provisions of the Bill of Rights, the controversies have focused upon
their boundaries and limitations. What is an "unreasonable search," a "compelled"
self-incrimination, an "establishment" of religion?
In the case of the Second Amendment' the dispute is far more fundamental, going to the very question of whether it
has any meaningful existence. Here, the conflict has been one between variants of
two viewpoints:
(1) the "individual rights" view, which has two variants:
(a) The "standard model," which sees the Second Amendment as guaranteeing a personal right on par with other
Bill of Rights protections;
(b) What I have termed the "hybrid" view, which sees it as
guaranteeing an individual right but limited to private
bearing of arms suited for military or militia use; and
(2) the "collective rights" view which likewise has two variants:
(a) The traditional "collective rights" approach, which sees
the amendment as protecting only a state interest in an
organized militia, i.e., National Guard units; and
(b) What the Fifth Circuit has termed the "sophisticated"
collective rights approach, which sees it as protecting
individual activity but only if directly linked to organized
militia missions.
As the first view treats the Second Amendment as a meaningful restriction on legislative action, while the second treats it as fundamentally meaningless,7 the conflict
is absolute.